Medical Marijuana: A Wild Ride on Federal and State Law

365px-Lilly96B2The Justice Department has announced a policy memo about how it will handle medical marijuana. The full memo is on The Justice Blog and in pdf here. As AP summarizes the DOJ will go after medical marijuana operations that exceed state laws or are fronts for criminal acts. At the same time, the New York Times reports that Los Angeles is thinking of cracking down on its more than its estimated 800-1,000 (yes 800-1,000) dispensaries. It seems that many are not adhering to the law that allowed them to exist. For example, many are turning a profit which apparently is not allowed; they must be non-profit. One dispensary in Oakland that adheres to the law has revenues of around $20 million. As the Times reports in other states such as New Mexico, licensed sites still encounter vague and contradictory rules as couriers can be stopped by border patrol and the medical marijuana confiscated even though the delivery is authorized. My colleague Alex Kreit does some great work on drug policy and certainly knows more about it than I. Luckily he will be guest blogging here in the near future. For now I will point folks to his op-ed Yes: It’s Time To Rethink Marijuana Prohibition. It is a thoughtful approach to what to do about marijuana (and has some fascinating figures about how many Americans use marijuana). For me, the recent moves by the federal and state governments seem to indicate that some better system is required to allow the medical use of the drug. The inconsistent standards and enforcement within each state is not great. The more difficult question is how much will medical marijuana be seen as using the federal system to let states test public policy choices? If one adds in same-sex marriage to the question, it seems that federal and state laws are entering a new phase regarding how they interact. I say that because it seems to me that the open divergence between federal and state systems with the possibility that the federal government will ignore or defer to states on national issues is new. In other words, these two issues seem analogous to prohibition and civil rights; yet they are managed differently. I could easily be wrong on this idea. I welcome thoughts and leave sorting out the implications of this possible change to the constitutional law folks.

UPDATE: Lori Ringhand’s comment helped me refocus my thoughts. As she notes (and I was trying to capture but apparently did not), there are of course ebbs and flows in this dynamic. Maybe the better way to ask my question is whether we are seeing a shift towards more deference to states. Again it may not be possible to verify this notion. In addition, it may be that the large social issues are catching attention more than the day-to-day issues. If so, the question may be further refined as are large scale social issues being left to the states a little more than they were from around the 1930s to the 1970s?

Image WikiCommons, Public Domain

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3 Responses

  1. Lori Ringhand says:

    They are managed differently, yes, but only at this moment in time. Civil rights has been an issue of national importance since the founding, but was nonetheless “left to the states” from the end of Reconstruction until the 1950s. The regulation of alcohol has fluctuated between federal and state control for a century.

    It seems to me that very few issues are categorically either nationalized or not. Rather, nationalization ebbs and flows over time and for variety of reasons – none of which are particularly well grounded in deep theories of what type of issue is better treated at what level.

  2. ParatrooperJJ says:

    The whole profit thing is easy enough to manage, just take a bigger paycheck.

  3. I find the whole issue annoying. Perhaps the gov’t is attempting to protect their people, but I find more likely reasons for the prohibition and slow actions for retracting it lay in the corporate landscape. Paper mills, logging, clothing manufacturers and big pharma may have to rethink how business is done if this little plant is legalized (as it should be).